Citation Nr: 9824153
Decision Date: 08/10/98 Archive Date: 07/27/01
DOCKET NO. 93-02 301 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service-connected disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active service from November 1943 to May
1946. For service in the Pacific Theater during World
War II, he was awarded the Combat Infantryman Badge and
Purple Heart Medals, among others.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from adverse rating decisions issued by the
St. Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO). This case was previously remanded for
additional evidentiary development in November 1994 and March
1997.
During the pendency of the present appeal, the veteran
claimed entitlement to service connection for arthritis of
multiple joints, including both hips, left knee, left ankle
and lumbar spine, all as secondary to his service-connected
multiple right leg disorders. The RO denied service
connection for multiple joint arthritis in a rating action
issued in July 1995. In its prior March 1997 remand action,
the Board found that the veteran's August 1995 substantive
appeal as to a total rating constituted a valid notice of
disagreement with the rating action denying service
connection for arthritis of multiple joints and directed the
RO to conduct examinations and to issue a statement of the
case in response thereto. After having three VA examinations
conducted in May 1997, the RO issued an August 1997 rating
action which granted service connection for arthritis of the
right hip with a 10 percent evaluation and, the same month,
issued a statement of the case denying service connection for
arthritis of the left hip, knee, ankle, and lumbar spine as
secondary to the veteran's service-connected right leg
disability, and the veteran was notified of this and his
appellate rights. He did not thereafter file a substantive
appeal, so this determination is final and may not be
reopened except upon submission of new and material evidence.
38 U.S.C.A. §§ 5107(a), 5108, 7105 (West 1991); 38 C.F.R.
§§ 3.304, 3.156, 20.200 (1997).
In the March 1997 remand, the Board noted that the veteran
had, in May 1996, filed a claim for service connection for
post-traumatic stress disorder (PTSD). Although there was no
diagnosis of this psychiatric disorder on file, the Board
requested that the veteran be provided a psychiatric
examination in consideration of his documented combat service
and injuries. The veteran was duly notified of a VA
psychiatric examination, but he did not attend. The veteran
has the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for PTSD is well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991). Because the file contains no evidence
of any acquired psychiatric disorder at any time during or
after service, and no diagnosis of PTSD, his claim for
service connection for PTSD is not well grounded. To well
ground this claim, the veteran must submit evidence which
shows or at least suggests that he has an acquired
psychiatric disorder which is related to an incident, injury
or disease of service. See 38 C.F.R. § 3.304(f) (1997);
Robinette v. Brown, 8 Vet. App. 69 (1995).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected disabilities
make it impossible for him to attain or maintain any further
substantially gainful employment.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claims folder, and for
the following reasons and bases, it is the decision of the
Board that the evidence is in favor of an allowance of a
total disability rating based upon individual unemployability
due to service-connected disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been requested or obtained.
2. Considering the veteran's education, employment history,
and vocational attainment, his service-connected disabilities
preclude gainful employment.
CONCLUSION OF LAW
The criteria for the award of a total rating for compensation
based upon individual unemployability have been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.340,
3.341, 3.951, 4.15, 4.16, 4.18, 4.68 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a), in that it is plausible. All of the
facts have been properly developed and no further assistance
is necessary to comply with the duty to assist. Id.
Law and Regulation: Total disability will be considered to
exist where there is present any impairment of mind or body
which is sufficient to render it impossible for the average
person to follow a substantially gainful occupation.
Permanence of total disability will be taken to exist when
such impairment is reasonably certain to continue throughout
the life of the disabled person. 38 C.F.R. §§ 3.340, 3.341.
The ability to overcome the handicap of disability varies
widely among individuals. The rating, however, is based
primarily on the average impairment of earning capacity, that
is, upon the economic or industrial handicap which must be
overcome and not from individual success in overcoming it.
Full consideration must be given to the unusual physical or
mental defects in individual cases, to particular effects of
occupational activities, to defects in physical or mental
endowment preventing the usual amount of success in
overcoming the handicap of disability, and to the effect of
combinations of disability. 38 C.F.R. § 4.15.
Total disability ratings may be assigned where the schedular
rating is less than total, when the disabled person is, in
the judgment of the rating agency, unable to secure or follow
a substantially gainful occupation as a result of service-
connected disabilities: Provided that, if there is only one
such disability, this disability shall be rated at 60 percent
or more, and that, if there are two or more disabilities,
there shall be at least one disability ratable at 40 percent
or more, and sufficient additional disability to bring the
combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
It is the established policy of VA that all veterans who are
unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. Extraschedular consideration
shall be provided to veterans who are unemployed by reason of
service-connected disabilities, although they fail to meet
the percentage standards set forth in paragraph (a) of this
section. 38 C.F.R. § 4.16(b).
Facts: The veteran was born in November 1924 and entered
military service in November 1943. He was wounded in action
in the Philippine Islands in June 1945 by enemy machine gun
fire, sustaining a penetrating wound of the right knee
region. His wounds included a compound, comminuted fracture
of the external tibial condyle and the head, neck and
adjacent shaft of the right fibula. The right peroneal nerve
was severed and knee motion produced excruciating pain. The
veteran was discharged by reason of disability in May 1946.
The veteran is service connected for residuals of combat
injuries and has been in receipt of a 70 percent combined
evaluation since January 1950. He has presently assigned
evaluations of 40 percent for complete paralysis of the right
common peroneal nerve, 30 percent for ankylosis of the right
knee, 20 percent for marked limitation of motion of the right
ankle, and 10 percent for residuals of a minimally displaced
fracture of the tip of the right greater trochanter. On
remand, the veteran was also provided with service connection
for right hip arthritis, with a 10 percent evaluation. He
also has a noncompensable evaluation for the residuals of
malaria. He has been in receipt of special monthly
compensation on account of loss of use of one foot since he
was separated from service in May 1946.
In August 1991, the veteran underwent extracapsular surgery
with implant for the left eye at a VA facility. The
diagnoses from this admission included the left eye surgery,
pseudoexfoliative glaucoma, hypertension, degenerative joint
disease, peripheral vascular disease, and coronary artery
disease with angina.
In June 1992, the veteran was admitted to a VA medical center
for chest pain. His 10-year history of hypertension was
noted, as was his previous history of no diabetes mellitus or
myocardial infarction or stroke. Examination of the heart
was regular for rate and rhythm and no murmur. The stay in
the hospital was uneventful and the veteran had normal
activity and no more chest pain and was discharged. The
diagnoses from admission were chest pain of unknown etiology,
hypertension, status-post gunshot wound to the right lower
leg, and dental problems.
In August 1992, the veteran testified at a personal hearing
at the RO. He provided a detailed description of the overall
level of disability of his right leg residual to gunshot
wounds received in service. He had very limited mobility and
could only walk short distances or stand for a limited amount
of time with use of a long leg brace, ankle orthotic, and
cane. He indicated that any significant use of his right leg
caused substantial pain. He pointed out that he had
graduated high school in 1943 and had attended a post-service
VA vocational course in agricultural services. Most of his
post-service employment was in sales Attempts to do more
physical work in construction and as a Federal inspector were
unsuccessful because of his service-connected disabling
limitations. He was self-employed until 1981 and worked
thereafter in sales. He indicated that he had earned about
$5,000 in 1992 before he terminated his employment as a
salesman earlier in August 1992.
Several lay statements were submitted indicating that the
veteran was unable to work due to service-connected
disability. The veteran's last employer wrote that the
veteran was unable to perform his job as a result of his
right leg handicap and that if it were not for this, he would
still be employed with his company.
In December 1992, the veteran submitted a statement
indicating that he had letters from three businessmen who
refused to hire him because of his service-connected
disability. He wrote that in 1986, he went to work for an
irrigation company, but was fired after about a year for
being too slow. He said that in late 1987, he went to work
for a company, but after six months, he was let go because he
was too slow.
In October 1994, the veteran was admitted to a VA medical
center for chest pain and pain in the left upper quadrant of
the abdomen. History noted past surgery for cholecystectomy,
hernia repair, and right leg surgery. There was no history
of myocardial infarction, diabetes or stroke. Physical
examination showed that the lungs were clear and the heart
had regular heart sounds without murmurs, gallops or rubs. A
chest X-ray showed some evidence of chronic obstructive
pulmonary disease (COPD), but no active disease was
identified, and heart size was within normal limits. An
upper gastrointestinal study noted a small hiatal hernia with
large gastroesophageal reflux. There was no evidence of
ulcer disease.
In January 1995, the veteran was provided with a VA
examination for muscles. This report indicated that the
veteran had chronic low back pain, most likely myofascial in
nature, which might be exacerbated by his normal gait
secondary to his right knee injury.
The same month, the veteran was provided with a VA orthopedic
examination. The diagnosis was mild degenerative arthritis
of the right hip and a statement that these changes might be
secondary to his altered gait and use of his brace as a
result of his injury.
In August 1995, a private physician (ACB) wrote that the
veteran had two medical problems. The first was exertional
angina that was controlled with sublingual Nitroglycerin and
rest. The second and primary medical problem "and reason he
is not able to work" is a World War II wound to his right
leg. These wounds destroyed the right knee joint and damaged
nerves in the lower leg. The right knee had less than
10 degrees of flexion and there was marked muscle atrophy
distal to the knee. The right ankle was deformed and the
right foot was displaced medially. A brace was required for
standing and walking. Gait was antalgic and he required a
cane. Standing and walking caused severe pain. The right
leg was unstable and the veteran was subject to frequent
falls. Bones in the right leg were osteoporotic and could
easily be broken.
In May 1997, the veteran was provided a VA neurological
examination. The right leg had profound atrophy of the right
quadriceps, hamstrings, anterior and posterior compartments.
There was a major scar approximately 2 cm. x 1 cm. deep on
the right lateral aspect of the right knee down, profound
clubbing of the right foot with contractures. There was
edema plus tissue friability with sores in the right lower
foot. The extent of atrophy was significant and truly
profound. Motor examination of the right leg revealed hip
adductors were 5/5, hip abductors were 4 plus/5, iliopsoas
was 4/5, but all muscles below this level were severely
impaired. The veteran had a hemiparetic and antalgic gait.
It was recorded that he occasionally had very painful spasms
in the right leg and he had arthritic changes on X-ray,
"which might be from musculoskeletal strain from profound
atrophy." This physician wrote that the veteran had "total
disability in regards to activities of daily living and his
trauma and subsequent present state." There would be no
significant improvement and most likely would continue on a
deteriorating course in the future.
In May 1997, the veteran was provided an orthopedic
examination. The claims folder was reviewed. The veteran
wore a double upright orthosis incorporating his foot and two
metal bars up to the thigh level. Right leg and knee motion
was limited, although the knee ligaments were noted as
stable. The right ankle was in fixed varus as well as
equinus and he was unable to bring his ankle up to the
neutral dorsiflexed position. Ten degrees of plantar flexion
remained. The joints of the mid foot and forefoot were
rigidly flexed. X-rays demonstrated only mild degenerative
arthritis of the hips, with the right slightly more affected
than the left. The prior great trochanteric avulsion
fracture was present and was healed. The right knee
demonstrated severe post-traumatic arthritis, as did the
right foot, and these joints were indistinct. This examiner
noted that the hips and left knee showed only minimal
arthritic changes and there was no significant decreased
range of motion of the left ankle to suggest arthritis. It
was stated that the amount of arthritis of the hips was
slightly more prevalent on the right "and this is likely
related to his service-connected right lower extremity
injury." The physician also stated that even though the
left leg might take on additional use from the right leg
injury, the veteran did not have any significant arthritis of
the left hip or knee or decreased range of motion of the left
ankle to suggest significant limitations.
In May 1997, the veteran was provided a general medical
examination. The veteran's history of hypertension was
noted, but it was recorded that this was well maintained on
medication. While he had been admitted to VA facilities in
the past for chest pain, there was never any evidence of
heart damage or myocardial infarction. His most recent
electrocardiograms showed no evidence of left ventricular
hypertrophy or previous infarction. There were no findings
of ulcer, but past findings of hiatal hernia were noted. The
veteran used a wheelchair. Examination showed that the lungs
were clear and the cardiovascular examination had regular
rate and rhythm with no gallop. Among others, the impression
was that the veteran had clear deformities of the right leg
from prior right leg injury. This physician also noted that
the veteran had "marked osteopenia of other areas, and I
suspect that the majority of this is related to
immobilization."
Analysis: In the Board's opinion, the evidence on file shows
that the veteran is essentially precluded from all forms of
gainful employment as a result of his service-connected
disabilities. His combined 70 percent evaluation for his
right leg disabilities meet the schedular criteria provided
for a total rating contained in 38 C.F.R. § 4.16(a). It is
noteworthy that in addition to the 40 percent evaluation for
complete paralysis of the right common peroneal nerve, the
30 percent evaluation for ankylosis of the right knee, and
the 20 percent evaluation for marked limitation of motion of
the right ankle, the veteran is also shown by the evidence on
file to have sustained significant scarring, profound atrophy
of all muscles below thigh level, significant degenerative
arthritis of the knee and ankle, and foot contractures and
sores. The veteran has consistently stated that use of his
right lower extremity for any extended period causes
significant pain.
In its most recent submission of written argument in June
1998, the representative has argued that the veteran is
entitled to additional compensable evaluations for arthritis
of the knee and foot. However, 38 C.F.R. § 4.68 provides
that the combined rating for disabilities of an extremity
shall not exceed the rating for the amputation at the
elective level, were amputation to be performed. In
reviewing the clinical evidence on file, the Board concludes
that although the veteran does have 10 percent evaluations
each for right hip arthritis and for the residuals of a
minimally displaced fracture of the tip of the right greater
trochanter which is now fully healed, the veteran nonetheless
is shown upon most recent examination to have good
musculature and strength and overall function of the right
hip, including the thigh muscles. 38 C.F.R. § 4.71a,
Diagnostic Code 7162 provides for a 60 percent evaluation for
an amputation of the leg at the middle or lower third of the
thigh which would be the elective level for amputation in the
veteran's case. Given the clinical evidence demonstrating
essentially good hip and thigh musculature and function,
application of the amputation rule at a higher elective level
(i.e., at the upper third of the thigh or higher) would not
be warranted. Accordingly, the application of the amputation
rule to the veteran's combined right leg service-connected
disability would provide for no higher than a 60 percent
evaluation. The veteran is already in receipt of a
70 percent evaluation for his combined right leg disability
and these ratings are clearly protected as having been in
effect since January 1950. See 38 C.F.R. § 3.951.
A careful review of the evidence on file shows that the
veteran is severely impaired as a result of his service-
connected right leg disability and it is clear that this
impairment is in some ways worse than an amputation at the
middle or lower third of the thigh level in terms of
continued pain, atrophy from disuse, ankylosis, and
limitation of mobility in excess of that which might
reasonably be expected from a well-placed prosthesis.
The evidence shows that the veteran has a high school
education and that he has been essentially prohibited from
performing any form of manual labor at any time in his post-
service life as a result of his service-connected disability.
Through perseverance, the veteran is shown to have
successfully overcome his disability and completed his years
of post-service employment in sales, both self-employed and
while employed by others. While some of this work may have
been sedentary, it is clear that a considerable portion of
this employment required a certain amount of ambulation. The
clinical evidence on file shows that the veteran's overall
right leg condition has worsened in severity over time to the
point where he is now basically unable to use it for any
ambulation and he must rely on a wheelchair to move any
significant distance.
The veteran has testified and submitted credible statements
indicating that he has lost and been refused past employment
directly as a result of his service-connected disability.
Also on file is the August 1995 private physician's statement
that the veteran is unable to work as a result of his
service-connected disability alone. Although the Board
specifically requested that the general medical examination
to be completed pursuant to its March 1997 remand evaluate
all service-connected and nonservice-connected disabilities
and to provide an opinion as to whether or not the veteran
was rendered unemployable solely by reason of service-
connected disability alone, no such opinion was provided, and
the RO did not return this opinion for clarification.
However, the May 1997 VA neurological examiner opined that
the veteran did have total disability in regards to
activities of daily living, although it is unclear whether or
not this opinion included consideration of only service-
connected disability. Nonetheless, there is no clinical
opinion on file which states that the veteran is not rendered
unemployable solely as a result of service-connected
disability.
The RO most recently denied the veteran's claim for a total
rating on the basis that he was rendered unemployable as a
result of non-service-connected disability. The United
States Court of Veterans Appeals (Court), in discussing the
requirements for a total rating in a case where a veteran had
both service-connected and non-service-connected
disabilities, stated:
Under 38 C.F.R. § 4.16(a), a determination
concerning unemployability indeed must be
made on the basis of service-connected
disabilities alone; "nonservice-connected
disabilities . . . will be disregarded."
Even if, as it appears, the [Board]
determined that appellant's unemployability
was a result of his age and nonservice-
connected heart condition, its task was not
finished. The [Board] still was required to
decide, without regard to the nonservice-
connected disabilities or his age, whether
appellant's service-connected disabilities
are sufficiently incapacitating as to render
him unemployable.
Pratt v. Derwinski, 3 Vet.App. 269, 272 (1992). Although the
Court has generally indicated that the Board should "consider
the relationship, if any, between appellant's service-
connected and nonservice-connected disabilities" (Pratt,
supra; Fluharty v. Derwinski, 2 Vet.App. 409, 413 (1992), the
need for discussion of the effect, if any, of non-service-
connected disorders on the veteran's employability is
obviated where the Board determines that the service-
connected disabilities alone are sufficient to produce
unemployability. In the instant case, the Board finds that
the veteran's service-connected disabilities alone are of
such severity as to produce unemployability.
ORDER
Entitlement to a total disability rating based upon
individual unemployability due to service-connected
disability is granted.
Gary L. Gick
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.